93 Decision Citation: BVA 93-04174
Y93
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 92-08 548 ) DATE
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THE ISSUE
Whether new and material evidence has been submitted to
reopen the veteran's claim for service connection for
pulmonary tuberculosis.
WITNESS AT HEARING ON APPEAL
The veteran
ATTORNEY FOR THE BOARD
J. W. Loeb, Counsel
INTRODUCTION
The veteran served on active duty from June 1943 to February
1946.
Service connection for pulmonary tuberculosis was denied by
the Board of Veterans' Appeals (Board) in July 1957 and in
December 1987. The veteran applied to reopen his claim for
service connection for pulmonary tuberculosis in March
1989. A rating decision of the Manila, Philippines,
Regional Office (RO) later in March 1989 continued to deny
the veteran's claim. He was notified of this decision in
April 1989. We find that a May 1989 letter from the veteran
can be construed as a notice of disagreement to the March
1989 rating action. The veteran testified at a personal
hearing at the regional office in September 1990. The
statement of the case was issued in March 1992, and the
veteran's substantive appeal was received by the Department
of Veterans Affairs (VA) in April 1992. This case was
docketed at the Board in June 1992.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that the RO committed error in not
granting service connection for pulmonary tuberculosis
because the evidence on file shows that he incurred this
disorder within a year after service discharge.
DECISION OF THE BOARD
For the reasons and bases hereinafter set forth, it is the
decision of the Board that new and material evidence to
reopen the veteran's claim for service connection for
pulmonary tuberculosis has not been received.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran's appeal has been obtained by the
RO.
2. Board decisions in July 1957 and December 1987 denied
service connection for pulmonary tuberculosis; evidence
received since December 1987 is either cumulative or
redundant and does not present a reasonable possibility of
changing the outcome of the prior decisions.
CONCLUSION OF LAW
The Board decisions of July 1957 and December 1987 are
final, and new and material evidence to reopen the veteran's
claim for service connection for pulmonary tuberculosis has
not been submitted. 38 U.S.C.A. §§ 5107(a), 5108, 7104
(West 1991); 38 C.F.R. § 3.156(a) (1991); Board of Veterans'
Appeals: Rules of Practice, 57 Fed. Reg. 4126 (1992) (to be
codified at 38 C.F.R. § 20.1105).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Board decisions in July 1957 and December 1987 denied
service connection for pulmonary tuberculosis. Once a claim
has been denied by the Board, it is considered final and
will not be reopened unless new and material evidence is
submitted in support thereof. 38 U.S.C.A. § 5108; 38 C.F.R.
§ 3.156(a). To be "new and material," the evidence must be
more than merely cumulative; the new evidence must be
relevant and probative and afford a reasonable possibility
that consideration of the new evidence, when viewed in the
context of all the evidence, would change the outcome of the
prior decision. Colvin v. Derwinski, 1 Vet.App. 171 (1991).
Evidence received by the VA since December 1987 includes a
February 1989 medical statement from Vicente N. Sta. Maria,
M.D., a September 1990 transcript of the veteran's personal
hearing at the regional office, and a December 1956 copy of
a medical report from Fernando B. Duran, M.D., which was
received by the VA in November 1990. The February 1989
statement from Dr. Maria is essentially the same as his
February 1987 statement, which was received by the VA in
March 1987. The veteran's testimony at his September 1990
personal hearing at the regional office is cumulative of
contentions that were on file at the time of the December
1987 Board decision. Finally, we note that the December
1956 clinical record from Dr. Duran is a copy of a clinical
report that has been on file since December 1956. Because
the evidence received by the VA since December 1987 is
cumulative of evidence already on file, there is no
reasonable possibility that it would change the outcome of
the prior denial. Consequently, this additional evidence
cannot be considered new and material. 38 U.S.C.A. § 5108;
38 C.F.R. § 3.156(a).
ORDER
The veteran's application to reopen his claim for service
connection for pulmonary tuberculosis is denied.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
*
JANE E. SHARP
PHILIP E. WRIGHT
*38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of
Veterans' Appeals Section, upon direction of the Chairman of
the Board, to proceed with the transaction of business
without awaiting assignment of an additional Member to the
Section when the Section is composed of fewer than three
Members due to absence of a Member, vacancy on the Board or
inability of the Member assigned to the Section to serve on
the panel. The Chairman has directed that the Section
proceed with the transaction of business, including the
issuance of decisions, without awaiting the assignment of a
third Member.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting
less than the complete benefit, or benefits, sought on
appeal is appealable to the United States Court of Veterans
Appeals within 120 days from the date of mailing of notice
of the decision, provided that a Notice of Disagreement
concerning an issue which was before the Board was filed
with the agency of original jurisdiction on or after
November 18, 1988. Veterans' Judicial Review Act, Pub. L.
No. 100-687, § 402 (1988). The date which appears on the
face of this decision constitutes the date of mailing and
the copy of this decision which you have received is your
notice of the action taken on your appeal by the Board of
Veterans' Appeals.